Wed March 28, 2012

Arguments End, Deliberation Begins For Health Care Law

The case is submitted. With those words from the chief justice, the three-day marathon at the Supreme Court ended. Today, the justices heard two sets of arguments over the federal health care law. There were sessions in the morning and afternoon with two separate questions to consider.

NPR's Ari Shapiro is with me in the studio to describe what happened. And, Ari, let's start with the morning arguments, a key question there hinging on yesterday's arguments.

ARI SHAPIRO, BYLINE: Right. So, for the morning arguments, you have to assume the worst for the Obama administration. You begin with the presumption that the court has decided to strike down the central part of the health care law, the part that says everyone has to have health coverage. And the question is, if you strike down that part of the law, does the court strike down the whole law, part of it, or can they just extract that one little provision and leave the rest intact?

BLOCK: Well, first up was Paul Clement representing the states opposed to the law. What did he say?

SHAPIRO: He said, don't just fiddle around the edges, rip the Band-Aid off. If you're going to take away the individual mandate, he said, you've just got a hollow shell of a law left. But the more liberal justices on the court said that's not true. They pointed to lots of provisions in the health law that have nothing to do with the individual mandate, things having to do with American Indian health or black lung survivors.

Justice Ruth Bader Ginsburg said, there are so many things in this act that are unquestionably OK.

JUSTICE RUTH BADER GINSBURG: Why shouldn't we say that it's a choice between a wrecking operation - which is what you are requesting - or a salvage job, and the more conservative approach would be salvage rather than throwing out everything.

SHAPIRO: Now, she obviously means conservative as in cautious, incremental, because the court's more conservative justices seemed to take a different view.

BLOCK: OK. Well, let's talk about them. What was the thrust of their questions today?

SHAPIRO: Well, as yesterday, they were much tougher on the government lawyer who, today, was Ed Kneedler. He argued that the individual mandate is intertwined with some parts of the law, for example, the very popular provision guaranteeing everyone coverage who wants it, regardless of any preexisting conditions.

But Kneedler urged the court not to strike down the whole law. As he put it, we think only a few provisions are un-severable from the minimum coverage provision. That encountered a lot of skepticism from the more conservative justices. Justice Antonin Scalia, for one, seemed to have no patience for that argument.

JUSTICE ANTONIN SCALIA: You really want us to go through these 2,700 pages?

(SOUNDBITE OF LAUGHTER)

SCALIA: And do you really expect a court to do that? Or do you expect us to give this function to our law clerks? Is this not totally unrealistic?

SHAPIRO: Classic Scalia style there. Kneedler, the government attorney, responded that the justices should exercise judicial restraint, something the conservative justices talk about a lot. Kneedler argued that knocking down the whole law would be a huge act of judicial activism. But Justice Anthony Kennedy came back and said, look, it might be just the opposite. Judicial activism would be for we, the justices, to parse this part stands and that part falls. The more judicial restraint would be to just say, we're going to knock it down and, Congress, back to the drawing board.

BLOCK: OK. So that question of severability in the morning and then a whole afternoon session devoted to a separate question about Medicaid.

SHAPIRO: Right. So, the law provides for an expansion of Medicaid. States have to provide services to a greater number of people. And, in exchange, they get a pot of money from the federal government to cover a lot, but not all, of that cost. If they decide not to expand their coverage, then they lose all of their Medicaid money. In the afternoon, the question was, is that coercion? Are the states being coerced into something that goes beyond the federal government's role?

BLOCK: And how did the justices respond?

SHAPIRO: Well, out of the three days of arguments, this seems to be the one where the health law's challengers had the toughest time. Justices cited a long history of cases that say Congress holds the purse strings. And if it wants to, it can pull those purse strings.

BLOCK: OK. NPR's Ari Shapiro talking about the third and final day of arguments in the Supreme Court. Ari, thanks so much.

SHAPIRO: Good to talk to you, Melissa. Transcript provided by NPR, Copyright National Public Radio.